The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION, WITHOUT PREJUDICE TO REFILING WITH SUBMISSION OF $350.00 FILING FEE (Docs. 1, 2, and 7)
Order Denying Leave to Proceed in Forma Pauperis
Plaintiff Raymond Alford Bradford, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 12, 2011, and the case was transferred to this division of the Eastern District of California on April 19, 2012. Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Docs. 2, 7.)
Plaintiff is subject to section 1915(g), which provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."*fn1 28
The determination whether Plaintiff is under imminent danger of serious physical injury is made based on the conditions at the time the complaint is filed, Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007), and the allegation of imminent danger must be plausible, id. at 1054.
II. Plaintiff's Allegations
In his complaint, Plaintiff alleges claims for relief against Inmate Appeals Branch Chief D. Foston and Inmate Appeals Examiner R. Davis, both located at the California Department of Corrections and Rehabilitation headquarters in Sacramento, California. Defendants Foston and Davis denied Plaintiff's inmate appeal at the third and final level of review, known as the Director's Level, on April 1, 2011, and it is the denial of his appeal which forms the basis for his claims against them. (Doc. 1, Comp., court record pp. 9, 10.)
In the appeal that was denied by Defendants, Plaintiff contended that on September 18, 2010, he gave Correctional Officer Capano a note stating that his cellmate was acting strangely and his cellmate had fashioned a weapon from a piece of his metal walker. (Id.) Plaintiff contended that Officer Capano walked away, a sergeant never came to talk to him, and he was subsequently attacked by his cellmate with the aforementioned weapon. (Id.) Plaintiff sought to have Officer Capano reprimanded and investigated, and he requested that the walker be confiscated and that he be given a radio. (Id.) Plaintiff's appeal was denied by Defendants on the ground that there was no documentation in his file to support any safety concerns. (Id.)
In his complaint, Plaintiff alleges that on April 27, 2010, V. Garcia documented an enemy concern within the Corcoran Security Housing Unit (SHU) and wrote that "staff are advised to evaluate and house accordingly." (Id., p.7.) Later, on March 6, 2011, Plaintiff was interviewed regarding safety concerns and the sergeant who interviewed him concluded that Plaintiff could not or would not identify any direct threat to himself. (Id., p. 8.)
Plaintiff, however, alleges that these two "chronos" document the existing threat to his safety. Plaintiff also cites to the declaration of inmate Brown, dated September 18, 2010, in which Brown, who was his cellmate, attests that Plaintiff told staff they were not getting along and Officer Capano ignored him, after which they got into a fight. Finally, Plaintiff also notes psychotropic medication forms dated January 18, 2011, July 10, 2011, and October 21, 2011.
A. Conclusory Allegations of ...